Obert v. Dunn

• Decision Date: 06 July 1897
• Citation: 41 S.W. 901,140 Mo. 476
• Parties: Obert, Appellant, v. Dunn et al. [*]
• Court: Missouri Supreme Court

41 S.W. 901

140 Mo. 476

Obert, Appellant, v. Dunn et al. ^[*]

Supreme Court of Missouri, Second Division

July 6, 1897

Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.

Affirmed.

B Schnurmacher for appellant.

(1) A lot of land in its natural state, and unimproved by buildings or artificial weight, is entitled to lateral support from an adjoining lot; and if the co-terminous owner should withdraw such support by excavating so close to the dividing line as to cause the earth to slip, he will be liable in damages therefor. Charless v. Rankin, 22 Mo. 573; Larson v. Railroad, 110 Mo. 234; Washburn's Easements and Serv., *p. 430. (2) And even where the land is burdened with buildings, the adjoining proprietor in excavating must use reasonable and ordinary care, and is liable for any injury that may result from a lack of it. Larson v. Railroad, supra; Washburn, *p. 437; City of Quincy v. Jones, 76 Ill 231; Foley v. Wyeth, 2 Allen, 131. (3) To establish this standard of care, it was therefore proper in this case to show how excavations like the one in question were generally made; and it was error on the part of the court to exclude this evidence. Shrieve v. Stokes, 8 B. Mon. 453; Monahan v. K. C. Clay and Coal Co., 58 Mo.App. 68. (4) Therefore, if it was the prevailing and general practice in the city of St. Louis to excavate in sections; that is, to remove a section of earth next to a building, and after filling that with masonry work, to remove another section, fill in, and so on, then such method was the standard and measure of ordinary care, and it was error in the court to exclude the testimony tending to show that such work was generally done in sections. Block v. Haseltine, 3 Ind.App. 491; Lasala v. Holbrook, 4 Paige, 169.

Kehr & Tittmann for respondents.

(1) Plaintiff's building was not entitled to lateral support from the lot of defendants. It was the right of defendants to excavate their lot, and if the excavation was so made that it would not have caused any appreciable damage to the plaintiff's lot in its natural state, that is, without a house on it, then there was no negligence in the exercise of the right. Charless v. Rankin, 22 Mo. 566; Larson v. Metropolitan Co., 110 Mo. 234; Eads v. Gains, 58 Mo.App. 586-591; 1 Thompson on Neligence, sec. 1. p. 275; 2 Washburn on Real Prop. [5 Ed.], 380, 381, 382; Washburn's Easements and Servitudes [4 Ed.], top page 594, 595; Lasala v. Holbrook, 4 Paige, 169; Thurston v. Hancock, 12 Mass. 220; Gilmore v. Driscoll, 122 Mass. 201; Dorrity v. Rapp, 72 N.Y. 307; Booth v. Railroad, 140 N.Y. 267; Ketcham v. Newman, 141 N.Y. 205; Moody v. McClelland, 39 Ala. 45. (2) Having been notified of defendants' intention to excavate their lot, it became plaintiff's duty to shore up, support or otherwise protect his own building against probable danger. Peyton v. Mayor of London, 9 Barn. and Cressw. 725. (3) As plaintiff's house was not entitled to lateral support from the adjoining lot, defendants were not bound either to excavate or build up in sections, and failure so to do is not negligence. Charless v. Rankin, 22 Mo. 566; Larson v. Metropolitan Co., 110 Mo. 234. Nor does the petition claim it as a ground of negligence. Waldhier v. Railroad, 71 Mo. 514; Smith v. Sims, 77 Mo. 274. The court's ruling, therefore, on the evidence, was correct.

OPINION

Sherwood, J.

Action for damages bottomed upon the fall of plaintiff's dwelling house, caused by an excavation made for a cellar on the ground of the defendants Luecke.

The substantial portion of the petition is the following: "That on or about the 27th day of March, 1894, the defendants Luecke were together the owners of a certain lot of ground immediately adjoining that of the plaintiff on the west, and that on or about said day the defendants Dunn and the defendants Luecke began to make and excavate a large and deep hole, intended for a cellar, upon the premises of said defendants Luecke, and continued to excavate until on or about April 5, 1894; that said excavating and digging was done in a careless and negligent manner by the defendants, and that the ground was so excavated that portions of the soil belonging to plaintiff's lot were caused to become detached and to fall, greatly undermining and weakening the foundation supporting plaintiff's house. And that defendants excavated over the line of the lot belonging to the defendants Luecke, and into the lot belonging to plaintiff; that the foundations of plaintiff's said house were exposed to great danger, and that it was the duty of defendants not to leave the same unnecessarily exposed, or exposed for an unnecessary length of time, but in disregard of their duty the defendants, after having made said excavation, commenced to build the masonry foundations of a house in said excavation, working only upon the north, south, and west sides, and not undertaking to build alongside the plaintiff's house at all. That the foundation wall of plaintiff's house was thus carelessly and negligently, and without any regard whatever by the defendants to the danger in which plaintiff's house was placed, left exposed for a period of ten full days after said excavation had been completed, during which time the defendants allowed their said excavation to become flooded with water, which ran against and upon the soil supporting plaintiff's house, greatly weakening and undermining such support, until on or about the 16th day of April, 1894, when, in direct and immediate consequence of the wrongful and careless conduct and acts of the defendants, the support of plaintiff's house entirely gave way, and said house, together with all of the furniture and other property of plaintiff contained therein, fell into said excavation and was completely wrecked, demolished, and destroyed. That by reason of the premises plaintiff sustained damage in the sum of six thousand dollars, for which, with costs, he prays judgment against defendants."

It will be noted that though various grounds of negligence are specified in the petition, yet that no claim is made therein that it was the duty of defendants to excavate or wall up in sections, or that failure to do so was negligence.

The joint answer of defendants, after suitable denials, states that the Lueckes were the owners of the ground adjoining that of plaintiff, and that they employed the Dunns as independent contractors and builders to erect for them on their ground a building according to plans and specifications, and that thereafter the Dunns entered on said premises and had sole control thereof and of the work to be done thereon in pursuance of the contract for the erection of the building they had agreed to build. The answer, among other things, states: "That on or about the 26th day of March, 1894, the defendants Dunn Brothers gave the plaintiff Obert notice of their intention to make the excavation for the cellar on the premises of the defendants Luecke and that such excavation would extend about seven feet below the curb of Lynch street, and would be likely to go about four feet below the foundation of plaintiff's house. And thereupon it became and was the duty of the plaintiff to underpin, sustain or otherwise properly protect his building, which he failed to do, and that the loss and injury complained of by plaintiff is the result of his failure or neglect to underpin, sustain or properly protect his said building."

It further alleges plaintiff's duty, under an ordinance of the city of St. Louis, at his own cost, to underpin, sustain, and protect his building and avers his failure to do so.

The reply avers that "as soon as he became aware of the fact that defendants intended to excavate on the lot of the defendants Luecke, this plaintiff did, in a careful and proper manner, protect and support his building and the walls thereof, but that despite all proper care and precaution on his own part, his said building was caused to fall by reason of the carelessness and negligence of defendants, as already fully set forth in the petition."

The evidence offered on the trial is in substance the following Obert, plaintiff, and the Lueckes owned adjoining lots on Lynch street in St. Louis. The soil on both lots was a natural bank of clay. The Luecke lot is west of the Obert lot. Originally both lots were considerably above grade. Plaintiff in his testimony describes them as on a hill. The house on his lot was built in 1886 on the embankment. It was a two-story mansard roof brick building, fronting eighteen feet on a twenty-five foot lot. Its western wall was built to the very edge of the lot. In 1892 or 1893, the Lueckes graded their lot to the level of Lynch street. From that time forward plaintiff's western cellar wall was about two and one half feet below ground. In March, 1894, the Lueckes let the contract for the erection of a building on their lot. Their plans of improvement contemplated two cellar excavations, one on the rear of the lot, adjoining plaintiff's woodshed and one toward the front adjoining plaintiff's house. The Luecke building was to be erected according to plans and specifications, and they let the entire contract to Dunn Brothers, a firm of contractors and builders, who took charge of the work as independent contractors, and, in turn, sub-let to Charles Taas, the contract for excavating the premises. Taas was paid by the yard, and was to excavate whatever was necessary according to the plans and specifications, using his own judgment as to how it was to be done. On the twenty-sixth of March, 1894, Dunn Brothers gave the plaintiff notice in writing that they would commence, on March 27, 1894, to excavate on the Luecke lot, and would excavate to a...